[23]     By the time the appeal was heard by Wright J., the sole issue was whether the appellant, being a Métis, was included within the scope of "Indian" in sec. 13 of the NRTA. It was again agreed that all the necessary elements to prove the offence had otherwise been established.

 [24]     "[F]or the purpose of addressing the specific issue" before him, Wright J., as requested by both parties,  proceeded "on the basis the necessary aboriginal title can be
 accepted as proved" (at 130 Man.R. (2d) 114, para. 9).

 [25]     He reviewed the findings below and found that they were  "valid and can be sustained" (at para. 10).  He noted (at para. 11):

      The importance of the above findings for the purposes of
      the determination of the issue presently before the court
      is simply that they add support for the conclusion the
      NRTA was not intended to apply to the Métis people.  If
      Métis aboriginal rights, by 1930, were long since
      extinguished, it makes little sense that the agreement
      would reflect protection for nonexisting rights.

 [26]     He rejected the argument that sec. 13 of the NRTA created a new right to hunt, trap and fish which had not existed prior to it.  In addition to accepting the trial
 judge's reasoning, he also found that the Métis were not included in sec. 13 because that section (at paras. 17-19):

      ... was aimed at protecting people (Indians) who were (or
      might become) wards of the Federal Crown through treaties
      or annuities. Other than those persons of mixed blood who
      were in existing Indian bands or chose to join as
      permitted, the Métis people were not involved in treaties
      or annuities.

      The nature of the negotiations in the 1920's, as reflected in correspondence and other evidence introduced at the trial of the appellant, shows that protection was the fundamental concern of the Federal authorities, being consistent with the Crown's obligations to those who automatically or voluntarily became subject to, or beneficiaries of, the Indian Act.

      Nowhere is there any suggestion the Métis, as a people, sought or were regarded as being in need of this kind of protection. On the contrary, the evidence demonstrates the Métis to be independent and proud of their identity separate and apart from the Indians.

 [27]     He agreed with the trial judge's statement that there was no likelihood the government would have confused the Indian and Métis peoples "following the period of the resistance in 1870" (at para. 21) and that by the time the NRTA was enacted all parties "would be quite conscious of the distinction recognized between Indian and Métis" (at para.24).

 [28]     While the unqualified term "Indian" in sec. 13 might be held to encompass non-treaty as well as treaty Indians, it was not intended, he concluded, to include the
 Métis.